Opinion
Civil No. 17-718 (DWF/KMM)
05-31-2018
Kelly Jon Brothers, Petitioner, v. Eddie Miles, Warden, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court upon Petitioner Kelly Jon Brothers' ("Petitioner") objections (Doc. No. 10) to Magistrate Judge Katherine M. Menendez's April 2, 2018 Report and Recommendation (Doc. No. 9) insofar as it recommends that Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 be denied and this action be dismissed.
The factual background for the above-entitled matter is clearly and precisely set forth in the Report and Recommendation and is incorporated by reference for purposes of Petitioner's objections. In the Report and Recommendation, the Magistrate Judge considered Petitioner's habeas petition under § 2254, and in particular his sufficiency-of-the-evidence challenge to his conviction for first-degree criminal sexual assault. The Magistrate Judge found that the jury's determination that the sexual contact at issue was nonconsensual was not "objectively unreasonable,", nor a conclusion with which "no rational trier of fact could have agreed." (Doc. No. 9 at 5 (citation omitted).) The Magistrate Judge also found that the record here contains the requisite quantum of evidence and that Petitioner has not satisfied the standards for habeas review because he did not demonstrate that his conviction or the decision of the court of appeals was contrary to Supreme Court precedent, involved an unreasonable application thereof, or otherwise relied on an unreasonable determination of the facts. Petitioner has filed objections to the Report and Recommendation, relying mainly on the argument that the Report and Recommendation is null under state and federal separation of powers clauses and that the state court erred and abused its discretion by ignoring its alleged lack of jurisdiction.
The Court has conducted a de novo review of the record, including a review of the arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b). After this review, the Court finds no reason that would warrant a departure from the Magistrate Judge's recommendations. The Magistrate Judge correctly concluded that Petitioner's habeas petition should be denied.
In addition, a § 2254 petitioner cannot appeal an adverse ruling on his petition unless he is granted a Certificate of Appealability ("COA"). 28 USC § 2253(c)(1). A COA may issue only if the petitioner has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Here, the Court concludes that Petitioner has not made such a showing.
Therefore, based upon the de novo review of the record and all of the arguments and submissions of the parties and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER
1. Petitioner Kelly Jon Brothers' objections (Doc. No. [10]) to Magistrate Judge Katherine M. Menendez's April 2, 2018 Report and Recommendation are OVERRULED.
2. Magistrate Judge Katherine M. Menendez's April 2, 2018 Report and Recommendation (Doc. No. [9]) is ADOPTED.
3. The Petition for Writ of Habeas Corpus (Doc. No. [1]) is DENIED and the action is DISMISSED.
4. No Certificate of Appealability is granted in this matter.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: May 31, 2018
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge